United States District Court, D. Nevada
before the court is petitioner William Laurix's abridged
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255. (ECF No. 22).
before the court is petitioner's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
(ECF No. 23). The government filed a response (ECF No. 26),
to which petitioner replied (ECF No. 28).
before the court is the government's motion for leave to
advise the court of new authority. (ECF No. 29). Petitioner
filed a response. (ECF No. 30). The government has not filed
a reply, and the time for doing so has since passed.
September 8, 2004, the government brought an indictment
charging the petitioner with three counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d),
and three counts of use of a firearm during a crime of
violence (“use of a firearm”). (ECF No. 1). On
November 10, 2004, petitioner pleaded guilty to three counts
of armed bank robbery (counts one, three, and five), and one
count of use of a firearm (count six). (ECF No. 12).
February 7, 2005, the court sentenced petitioner to 70 months
imprisonment for the armed bank robbery convictions and 84
months imprisonment for the § 924(c) conviction, with
the latter conviction to run consecutive. (ECF No. 15). The
court entered the judgment on February 18, 2005. (ECF No.
17). Petitioner is currently on supervised release. (ECF No.
instant motion, petitioner moves to vacate pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”), and requests that the court
resentence petitioner. (ECF No. 23).
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Relief pursuant to § 2255 should be granted only where
“a fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
instant motion, petitioner requests that the court vacate his
allegedly erroneous conviction pursuant to Johnson.
(ECF No. 61). In particular, petitioner argues that his
conviction violates the Constitution's guarantee of due
Johnson, the United States Supreme Court held the
residual clause in the definition of a “violent
felony” in the Armed Career Criminal Act of 1984, 18
U.S.C. § 924(e)(2)(B) (“ACCA”), to be
unconstitutionally vague. 135 S.Ct. at 2557. The ACCA defines
“violent felony” as any crime punishable by
imprisonment for a term exceeding one year, that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
emphasized above is known as the ACCA's “residual
clause.” Johnson, 135 S.Ct. at 2555-56. The
Court held that “increasing a defendant's sentence